Zanazanian v. Saul
Filing
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ORDER granting 32 Motion for Attorney Fees. Plaintiffs attorney, the Law Offices of Lawrence D. Rohlfing is awarded attorneys fees pursuant to 42 U.S.C. § 406(b) in the amount of $15,000.00. IT IS FURTHER ORDERED that, upon receipt of the $15,000.00, the Law Offices of Lawrence D. Rohlfing shall reimburse Plaintiff the amount of $4,350.00 received as EAJA fees. Signed by Magistrate Judge Daniel J. Albregts on 3/26/2024. (Copies have been distributed pursuant to the NEF - CAH)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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Dawn Z.,
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Case No. 2:20-cv-01720-DJA
Plaintiff,
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v.
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ORDER GRANTING MOTION FOR
ATTORNEY’S FEES
Martin O’Malley 1, Commissioner of Social
Security,
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Defendant.
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Plaintiff’s attorney (“Counsel”) moves for an award of attorneys’ fees following his
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successful motion for remand. (ECF No. 32). No party opposed the motion, although the
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Defendant filed an informative response without taking a position on fees. (ECF No. 34).
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Counsel did not reply. For the reasons discussed below, the Court grants the motion.
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Plaintiff entered into a contingency fee agreement with Counsel for 25% of any past-due
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benefits awarded upon a reversal of an unfavorable decision by an administrative law judge.
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(ECF No. 32-1). The Court granted the Plaintiff’s motion to remand and remanded for further
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proceedings. (ECF No. 28). Upon remand, the Social Security Administration awarded Plaintiff
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$86,293.00 in past-due benefits. (ECF No. 32 at 6).
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Under 42 U.S.C. § 406(b)(1)(A), when a claimant who is represented by counsel obtains a
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favorable court judgment, “the court may determine and allow as part of its judgment a
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reasonable fee for such representation, not in excess of 25 percent of the total of the past-due
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benefits to which the claimant is entitled by reason of such judgment.” This fee is payable out of
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the past-due benefits awarded to the claimant and not as an additional recovery from the
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defendant. Id.
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Martin O’Malley is now the Commissioner of Social Security and substituted as a party.
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Although other fee-shifting schemes resort to use of the “lodestar” method to calculate a
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reasonable attorney’s fee, § 406(b) is not a fee-shifting statute. Gisbrecht v. Barnhart, 535 U.S.
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789, 802 (2002). The statute requires the attorney’s fee be taken from the past-due benefits
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awarded to the claimant and not as an additional recovery from the defendant. Id. Thus, § 406(b)
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“does not displace contingent-fee agreements as the primary means by which fees are set for
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successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for
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court review of such arrangements as an independent check, to assure that they yield reasonable
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results in particular cases.” Id. at 807. The only statutorily-imposed constraint is that the fee
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agreement cannot “provide for fees exceeding 25 percent of the past-due benefits.” Id. (citing
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§ 406(b)(1)(A)).
Consequently, in Social Security cases, the court begins with the contingency fee
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agreement and then “tests it for reasonableness.” Id. at 808. “[T]he question is whether the
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amount need[s to] be reduced, not whether the loadstar amount should be enhanced.” Crawford
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v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). The court may reduce the fee award
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“based on the character of the representation and the results the representative achieved.”
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Gisbrecht, 535 U.S. at 808. Thus, the court “may properly reduce the fee for substandard
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performance, delay, or benefits that are not in proportion to the time spent on the case.”
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Crawford, 586 F.3d at 1151. The court may “consider the lodestar calculation, but only as an aid
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in assessing the reasonableness of the fee.” Id. (emphasis omitted). The attorney seeking the fee
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award bears the burden of establishing the fee sought is reasonable. Id. at 1148. The award of
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fees under § 406(b) lies within the court’s discretion. Id. at 1147.
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Counsel requests less than 25% of Plaintiff’s past due benefits. He presents evidence that
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he spent 22.15. hours on the case. (ECF No. 32-4). There is no evidence of substandard
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performance. Rather, Counsel obtained a favorable result in the form of a remand and subsequent
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award of substantial past benefits. There is no evidence Counsel caused any delay to increase the
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contingent amount. Additionally, the fees are not excessively large in relation to Counsel’s
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experience in this area of law and the past-due benefits obtained for the claimant. The goal of fee
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Page 2 of 3
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awards under §406(b) is to provide adequate incentive to represent claimants while ensuring that
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the usually meager disability benefits received are not greatly depleted. Cotter v. Bowen, 879
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F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807.
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Counsel, therefore, has met his burden of establishing a reasonable fee award in the amount of
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$15,000.
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The Court previously granted the parties’ stipulation to award Plaintiff $4,350.00 in
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attorneys’ fees under the Equal Access to Justice Act (EAJA). (ECF No. 31). Counsel agrees he
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will credit this amount against any fee awarded under 42 U.S.C. § 406(b). (ECF No. 32 at 6); see
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also Gisbrecht, 535 U.S. at 796 (stating that a claimant may obtain fee awards under both
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§ 406(b) and the EAJA but the attorney must refund the smaller fee amount to the claimant).
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IT IS THEREFORE ORDERED that the motion for attorneys’ fees (ECF No. 32) is
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GRANTED. Plaintiff’s attorney, the Law Offices of Lawrence D. Rohlfing is awarded
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attorneys’ fees pursuant to 42 U.S.C. § 406(b) in the amount of $15,000.00.
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IT IS FURTHER ORDERED that, upon receipt of the $15,000.00, the Law Offices of
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Lawrence D. Rohlfing shall reimburse Plaintiff the amount of $4,350.00 received as EAJA fees.
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DATED: March 26, 2024
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DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE
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